For, notwithstanding the alleged defect in the service on
him of the summons, if he made a general appearance in the
justice court, he will be bound by that appearance as having
waived the informality of the summons. Pleas based upon lack of
jurisdiction of the person are in their nature pleas in abatement
and find no special favor in the law. They amount to no more
than the declaration of the defendant that he has had actual
notice, is actually in court in a proper action, but, for
informality in the service of process, is not legally before the
court. It is purely a dilatory plea, and when the defendant
seeks to avail himself of it, he must, for very obvious reasons,
stand upon his naked legal right and seek nothing further from
the court than the enforcement of that right. He will not be
heard to ask the court of anything further than the adjudication
upon his plea, and if he does ask anything further, then, by
logic of the fact, he must necessarily have waived the
irregularity of the summons before the court. Here is one reason
for the well-settled rule that if a defendant wishes to insist
upon the objection that he is not in court for want of
jurisdiction over his person, he must specially appear for that
purpose only, and must keep out for all purposes except to make
that objection. Another reason equally valid, is that if such
defendant shall ask for any relief other than that addressed to
his plea, he is seeking to gain an unconscionable advantage over
his adversary, whereby, if the determination of the court be in
his favor he must avail himself of it, while, if it be against
him, he may fall back upon his plea of lack of jurisdiction over
the person. So it is well settled that if a defendant, under
such circumstances, raises any other question, or asks for relief
which can only be granted upon the hypothesis that the court has
jurisdiction of his person, his appearance is general, though
termed special, and he thereby submits to the jurisdiction of the
court as completely as if he had been regularly served with
summons. (citations omitted) In the present case the defendant
made his motion to quash service of summons. In this, his
appearance was undoubtedly special, as he limited it solely to a
request for specific relief. But he also demurred to the
jurisdiction of the court over his person and over the subject
matter of the action. In this case plainly a demurrer to the
complaint for lack of jurisdiction over his person could not lie.
If in any conceivable case it could lie, such a demurrer also
would be treated as a special appearance. But here he went
further and demurred to the jurisdiction of the court over the
subject-matter of the action, a request for relief which the
court could not grant him, saving upon the theory that he was
regularly before the court. It was relief, moreover, independent
and apart from his plea to the jurisdiction of the person, and,
if successful, would have worked a dismissal of the action upon
an entirely distinct legal ground. That in so demurring he
waived the question of the jurisdiction of his person and
submitted himself to the jurisdiction of the court is abundantly
settled. ( Code of Civ. Proc., sec. 1014; Zobel v Zobel, 151 Cal.
98 [90 Pac. 191]
[Olcese v. Justice Court, 156 Cal. 82, 87-88 (1909)]
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Olcese v. Justice Court